CLAIM NO. F501764
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 17, 2011
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE STEVEN MCNEELY, Attorney at Law, Little Rock, Arkansas.
Respondents No. 1 represented by the HONORABLE MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE CHRISTY L. KING, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
Respondent No. 2, Death and Permanent Total Disability Trust Fund, appeals an administrative law judge’s opinion filed April 8, 2011. The administrative law judge directed Respondent No. 2 to pay the claimant’s half of
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the attorney’s fee in a lump sum. After reviewing the entire recor de novo, the Full Commission reverses the administrative law judge’s opinion.
The claimant sustained a compensable injury on January 31, 2005. The claimant’s healing period ended October 30, 2007, and she is now permanently totally disabled. On October 25, 2010, the claimant’s attorney filed a request for payment of attorney’s fees in a lump sum. Respondent No. 2 assumed payment of benefits on November 30, 2010. Respondent No. 1 subsequently agreed to pay their portion of fees for legal services in a lump sum.
The Workers’ Compensation Commission is authorized to approve lump-sum attorney’s fees for legal services rendered in respect of a claim. Ark. Code Ann. § 11-9-716(a) (Repl. 2002). In the present matter, however, Respondent No. 2 did not controvert the claim and no attorney’s fees have been awarded against Respondent No. 2. Respondent No. 2 informs the Commission that the Fund has been withholding a 12 ½ % attorney’s fee from the claimant’s weekly benefits. The claimant’s attorney is receiving a separate check of $58.12 per week. Unlike Respondent No. 1, Respondent No. 2 has not entered into an agreement to pay attorney’s fees in a lump sum. The Commission’s statutory authorization to approve a lump-sum attorney’s fee is discretionary. The claimant’s attorney has not presented a compelling reason for the Commission to order Respondent No. 2 to pay attorney’s fees in a lump sum.
Based on our de novo review of the entire record, the Full Commission reverses the administrative law judge’s finding that Respondent No. 2 shall pay
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the claimant’s half of the attorney’s fee in a lump sum. We direct Respondent No. 2 to continue withholding the claimant’s 12 ½ % attorney’s fee from the compensation payable to the claimant and to continue forwarding the funds to the claimant’s attorney by separate check.
IT IS SO ORDERED.
____________________________ A. WATSON BELL, Chairman
____________________________ KAREN H. McKINNEY, Commissioner
Commissioner Hood dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion. I find, as has the Court of Appeals, that the Commission has the authority to award a lump sum attorney’s fee to be paid out of the claimant’s portion of the funds coming to the claimant from the Death Permanent Total Disability Trust Fund. Based upon a denovo review of the record in its entirety, I find that as the claimant has requested a lump-sum attorney fee payment, and as the legislature and the Courts have specifically stated that the attorney fee statutes were enacted to benefit the claimant, the majority has erred by not approving the claimant’s request. The majority is requiring the claimant to present a “compelling reason” for a lump sum request to be granted. Nowhere in the statute is this requirement. Again, the lump-sum attorney fee statute was enacted to benefit the claimant, not the Trust Fund. The majority, by affirming and adopting the opinion of the Administrative Law Judge, is placing the wants of the Trust Fund over the needs of the claimant. This is error. Therefore, I must respectfully dissent from the majority opinion.
____________________________ PHILIP A. HOOD, Commissioner
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